Expungement of Florida Records:
FAQ  -  Part 2

14. Am I eligible to have my record sealed or expunged?

If the record you want to seal or expunge is a juvenile record, and if you participated in a prearrest or postarrest diversion program related to that record, you might want to review the FAQ: "What is juvenile diversion expungement?", to see if you qualify for that process first. If you do, using that process would not automatically prohibit you from using the regular process to seal or expunge a different Florida record, if you should ever need to - if you are otherwise eligible. See FAQ: "Is it true that I can only use the seal or expungement process once?" for more information.

15. Are there some quick factors I can review about my eligibility, to get started?

Yes. Take a look at the "Fast 5", to get 5 of the easier eligibility issues out of the way. If you clear that hurdle, you're on your way. Then, you can take a look at the Eligibility factors for more information; or you request a FREE Eligibility Review from the Firm.

16. What will make me automatically ineligible to seal or expunge my record?

There are numerous factors which can make you ineligible to seal or expunge your Florida criminal history record. Below are some of the factors which are a bit easier to review.

If you are not sure if you have ever been adjudicated guilty of any criminal offense, read more about "adjudicated guilty" and about reviewing your overall criminal history to determine your eligibility.

If you answered "Yes" to any of the above questions, unfortunately, with the possible exceptions noted below, you are not eligible under Florida law to have your record sealed or expunged at this time. Depending on the factor and your situation, you may become eligible in the future.

If you answered "Yes" to question 1, 3, or 5, you cannot seal or expunge any nonjudicial Florida criminal history record, using the regular seal and expungement process, except as noted below.

If you are currently serving probation for any of the charges related to the record you want to seal, the law requires that you wait to apply to seal your record until you have completed probation or other court supervision for all charges related to record you want sealed. You also have to meet all the other eligibility requirements. (You might want to find out if you can terminate your probation early.)

If you had a conviction (adjudication of guilt) or an adjudication of delinquency overturned by a court on appeal, and the final disposition of your case was something other than "guilty" or "delinquent", you should review all the other factors related to eligibility and consult with an attorney. Depending your overall situation, you may find that you are eligible to seal or expunge your record; but, you will need to consider other factors which might impact the final review process in court.

The first question above may not apply to you, if you are trying to expunge a Florida record that you have had sealed for 10 years, based on statutory requirements. If this is your situation, you should review the additional eligibility factors for expungement, because you must be eligible to expunge the record under current legal requirements.

The first question may also not apply to you, if you had a criminal history record sealed or expunged under another provision of law, such as administrative expungement or juvenile diversion expungement.

If you are not eligible to seal or expunge your record at this time, you may wish to discuss your situation with an attorney, to see if there is anything that can be done to change your situation and ineligibility.

17. If I am on probation, am I automatically not eligible to seal or expunge my record?

Yes, you are temporarily, automatically ineligible to use the regular seal or expungement process while you are on probation if you are trying to seal or expunge the record which is related to your probation. Being on probation, by itself, does not make you permanently ineligible to seal your related record. When you have successfully completed your probation, you can review your overall eligibility to seal your record. In the meantime, you might want to check with your defense attorney to see if you qualify for early termination of your probation.

If you are trying to seal or expunge a Florida record other than the one related to your probation, the fact that you are on probation would not automatically make you ineligible to use the regular seal or expungement process for your other record, under the statutory requirements. However, you need to confirm that you are eligible under all the other criteria for the seal or expunge process. You should also consult with an attorney to review your overall situation and to review several important legal issues such as a) the possible impact on the seal or expungement process for your other record, if you have any problems during the remainder of your probation; and b) the factors a court may consider in deciding whether deny a petition to seal or expunge a record when a person is otherwise eligible under the applicable Florida statutes.

18. If I have recently been arrested but my case is still pending, can I seal or expunge a different Florida record in the meantime?

Your pending case might impact your ability to seal or expunge a different Florida record. First, if, before you file your petition for an order to seal or expunge your other record, you are adjudicated guilty of any of the charges from your recent arrest, you will not be eligible to seal or expunge your other record (or any other nonjudicial Florida criminal history record). Florida statutory law prohibits the sealing or expunging of any Florida record if, at any time before the date the person files a petition for an order to seal or expunge, the person had ever been adjudicated guilty of any crime. Second, the circumstances of your recent criminal case may be a factor considered by the court when reviewing your petition to seal or expunge your other record, whether your recent case is pending or resolved with a withhold of adjudication. You should consult with an attorney about the seal and expunge legal issues and your options.

19. Are there any criminal charges that would be OK to seal or expunge?

It might seem like there should be an easy answer to this question. However, there are many factors which can impact the ability to have a Florida record sealed or expunged, regardless of the criminal charge(s) in the record. Let's start with an overall statement: Any crime not specifically prohibited in the Florida laws governing the seal or expungement process, Sections 943.0585 or 943.059, Florida Statutes, will be "OK" to seal or expunge IF all other eligibility criteria have been met and IF there are no factors which a court, in its discretion, may review and use to deny your petition for an order to seal or expunge.

You can review lists of charges which may automatically disqualify you from sealing or expunging the record related to those charges, or any Florida record, depending on whether you were charged as an adult or a juvenile and depending on the final disposition of the charges.

With the above information in mind, one "easy" crime to mention might be "petit/retail theft". If you have only been arrested once, never had any criminal traffic charges, never received a notice to appear or summons for criminal court, never had any other charges against you as a juvenile or adult, and the only charge in your case was petit/retail theft for which you were not adjudicated guilty or delinquent, it's likely you are eligible to have that record sealed or expunged. The choice to seal or expunge would depend on the final disposition in the petit/retail theft case.

You should review the Eligibility factors or consult with an attorney, if you have questions or additional background information. You can request a FREE Eligibility Review from the Firm.

20. What if every charge against me was dropped by the prosecutor or dismissed by the court?

21. If I have a pending Florida criminal case, should I be concerned now about whether I will be eligible to seal or expunge that record later?

Yes! The final criminal charges, your plea, and the final disposition of the charges can impact your eligibility to seal or expunge the related record later, if you are otherwise eligible. Choosing the right subparagraph of a particular statute during plea negotiations can directly impact your eligibility - or ineligibility - to seal or expunge the related record - or any other Florida record. Certain words that appears on the booking sheet or police report created by the agency that arrested you may also impact your ability to seal or expunge your record. For example, a designation of "domestic violence" in your booking sheet or police report which is incorrect and which is not addressed in your criminal case can lead to an automatic denial by the Florida Department of Law Enforcement (FDLE) of your application to seal or expunge your record.

22. Is there anything I can do if I am not eligible to seal or expunge my record?

If you are not eligible only because you are currently serving probation or under other court supervision for one or more of the charges related to the record you want to seal or expunge, you can wait until you complete your probation or supervision and confirm your eligibility to seal your record at that time. (You might want to check to see if you qualify to terminate your probation early.)

If you are not eligible due to a criminal "conviction" (an adjudication of guilt) or due to a withhold of adjudication for a disqualifying crime, you may be able to have your conviction or other judgment vacated and your charge(s) modified. There are specific requirements and a limited time period for these processes, though. You will need to consult with a criminal defense attorney about your options.

If you wanted to expunge your record and found out that you are not eligible only because the charges in your record were not dismissed, you may be eligible to seal your record instead. Read more about Eligibility or request a FREE Eligibility Review from the Firm.

23. What is "juvenile diversion expungement"?

Some of the key requirements for this process:

(1) The person successfully completed an authorized prearrest or postarrest diversion program for minors which a) is limited to first-time minor offenders who are arrested for a "nonviolent misdemeanor" but who have not otherwise been charged with or found to have committed any criminal offense or comparable ordinance violation; and b) expressly authorizes or permits this type of expungement;

(2) The person submits the required state application packet for expungement no later than 6 months after completion of the diversion program; and

(3) Prior to filing the application, the person had never been charged with or been found to have committed any criminal offense or comparable ordinance violation.

The state application for the juvenile diversion expungement process includes a section which requires certification by the relevant state attorney that the applicant has successfully completed the authorized type of prearrest or postarrest diversion program. The completed application must be filed with the Florida Department of Law Enforcement (FDLE), along with the applicant's fingerprints and the required state application processing fee of $75.00. If the applicant is under 18 at the time the application is signed and notarized, the applicant's parent or legal guardian must also sign the application. If FDLE determines that the applicant meets the statutory requirements for expungement under this process, the agency will expunge the person's record and provide notifications as required by law.

The "expungement" of records under this process is different than under the regular expunge process mentioned above (under Section 943.0585, Florida Statutes). Florida law only requires local criminal justice agencies in the county in which the minor was arrested to seal records which are eligible under this process - not to shred or destroy them, as is required under the regular expungement process described above. A person's "expunged" record under this process must be made available to a criminal justice agency when the agency must determine the person's eligibility for a prearrest, postarrest, or teen court diversion program; when the record is sought as part of a criminal investigation; or when the person applies for a job with the agency. Under the regular expungement process, your records must be destroyed, except for the record maintained by FDLE.

One advantage to using the juvenile diversion expungement process is that it will not prohibit a person from applying to seal or expunge a different record using the regular process under Section 943.0585 or 943.059, Florida Statutes.

Another advantage to the juvenile diversion expungement process is that there is no statutory requirement to file a petition for a court order to have a person's nonjudicial juvenile record expunged. A court order is required in the regular expunge process.

You should carefully consider your options before choosing from among the available options to seal or expunge your juvenile record.

You can also read about the automatic expungement of certain juvenile records.

Request a review of your eligibility for Juvenile Diversion Expungement.

24. What is "automatic juvenile record expungement"?

Before applying for juvenile diversion expungement, you should consider a few things about nonjudicial juvenile arrest records in Florida. First, the Florida Department of Law Enforcement (FDLE) maintains Florida's database of criminal history records. Based on Florida law, some juvenile arrest records are not available from FDLE which were created during a certain period of time. Others are not available because they are automatically expunged after a certain period of time.

Prior to October 1, 1994, FDLE did not maintain juvenile arrest records in its database. So, juvenile arrest records for felonies before October 1, 1994, and those for misdemeanors before July 1, 1996, are not available to the public from FDLE's database, unless the juvenile was treated as an adult in the criminal justice process.

Under specific conditions, certain nonjudicial juvenile records in Florida are automatically expunged by FDLE when the person reaches the age of 24 or 26. Some juvenile records must be merged with a person's adult record. The conditions can get a little complicated, and involve several factors including the nature of the charges, the disposition of the case, and the date of the arrest. You can read more about these conditions and Florida juvenile arrest records in Section 943.0515, Florida Statutes.

The above-referenced automatic expungement of juvenile records only applies to records maintained by FDLE. Other laws apply to juvenile records located at other agencies or entities, including Section 985.04, Florida Statutes.

25. What is "administrative expungement"?

Administrative expungement is a process used in Florida to expunge the nonjudicial criminal history record of the arrest of a minor or an adult which was made contrary to law or by mistake.

If an application for an administrative expungement meets the legal requirements, FDLE will notify the arresting agency, which is responsible for expunging its records of the arrest and notifying any other agency to which it provided the criminal history record information.

Under Florida law, an application or endorsement under this process is not admissible as evidence in a judicial or administrative proceeding and may not be construed as an admission of liability regarding the arrest.

The legal requirements and rules for the Florida administrative expungement process can be found in Section 943.0582 of the Florida Statutes and Rule 11C-7.008 of the Florida Administrative Code.

Ask the Holmes Law Firm for help with administrative expungement.